Balvinder Singh vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

In a proceeding held under Section 27 of the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as "Act") as against the petitioner, the Secretary to the Mussoorie Dehradun Development Authority (MDDA) had passed an order whereby it was directed to demolish the property belonging to the petitioner which was constructed without sanctioning of the map unauthorisedly, which was challenged in pursuance of the notice issued against him under the Act. The said demolition order it is an admitted position that the same has attained finality in a revision which has been preferred by the petitioner by an order dated 17.07.2018.

Despite of the construction being declared as unauthorized construction, the demolition proceeding was not being carried. The petitioner had challenged the order passed by the Secretary, MDDA, as well as the Revisional Authority in the present writ petition. The coordinate Bench of this Court had by way of an interim order dated 03.01.2019 had stayed the effect and operation of the order, subsequent thereto the writ petition was taken up before the Court on 25.02.2019 and the following order was passed:-

"In the counter affidavit filed by respondent no.3, it is stated that in regard to the illegal construction raised by the petitioner, sealing order was passed by respondent no.2 on 23.11.2016 and accordingly the unauthorized construction was sealed on 25.11.2016. It is also stated that as per inspection report, one seal put out of three had been removed and the ground floor was being used as shop and first floor was being used as Godown.

Although interim order was granted to the petitioner by this Court vide its order dated 03.01.2019 but now it appears to the Court that the petitioner has not come with clean hands.

Respondent no.4 also states in her counter affidavit that the petitioner is using the property for commercial purposes, which was sealed by the authority.

In the above facts and circumstances, interim order dated 03.01.2019 is hereby vacated."

The grievance of the private respondent was that though despite of there being a sealing order dated 25.11.2016, but still the petitioner had proceeded to open the seal and utilize the property for the commercial activities. The matter remain pending till and was taken up on 19.03.2019 and after considering the rival contentions in detail, this Court has passed an order on 19.03.2019 directing the Senior Superintendent of Police, Dehradun to provide police force to the MDDA so as to enable them to comply with the order passed by the Revisional Court, as well as the order passed by the Secretary, MDDA, declaring the portion of the construction of the petitioner as unauthorized.

In compliance of the said order, the counsel for the MDDA on 26.03.2019 had sought time to place on record a detailed affidavit along with the other documents to show that the part declared as unauthorised has been demolished. In compliance thereto, the affidavit has been filed by the MDDA on 29.03.2019 annexing therewith the copy of CD recorded about the action taken by them in pursuance to the order dated 19.03.2019 and also a pleading has been raised to the effect that after the passing of the order by this Court on 19.03.2019, the petitioner had rather sought permission from the MDDA to demolish the construction themselves. After filing of the affidavit by the MDDA along with the CD, this Court has perused the CD in the Court itself in the presence of the respondent in person and counsels with regard to the action taken by the MDDA for demolition of the construction already declared to have been raised unauthorisedly by the petitioner.

Considering the fact that the order stands complied with and in view of the statement which has been made by the learned counsel for the MDDA that the construction as declared to be unauthorised in pursuance of the impugned order under challenge had already been demolished and the petitioner had removed his construction as declared unauthorized.

Apart from the above controversy, in fact, which is raised before this Court with regard to the declaration of the construction as unauthorized in pursuance of the impugned order under challenge, the private respondent had expressed various other grievances as against the petitioner, which was not the subject matter of controversy before the MDDA nor could it be for the first time raised before this Court. This Court has gone through the CD which has been produced by the MDDA and after seeing the CD and being satisfied on the same that the construction thus declared as unauthorised has already been demolished in pursuance of the order dated 19.03.2019, this writ petition is closed. However, the closure of this writ petition will not prejudice the rights of the private respondent to seek redressal of her grievance, in case if she has any, in relation to any other act apart from the act which was subject matter of controversy before this Court.

The debris of the construction which has been demolished by the MDDA would be permitted to be removed by the petitioner. It is argued by the private respondent that despite of the order passed by this Court, the petitioner is still proceeding to raise construction. It will be open for the MDDA to initiate a fresh proceeding in case if any efforts is made by the petitioner to raise construction in contravention to the orders passed earlier declaring his construction to be unauthorised.

Accordingly, since in compliance of the order dated 23.11.2016 and 05.04.2017, as the unauthorised construction has already been demolished, this writ petition is closed.

Without prejudicing the right of the parties to approach an appropriate forum or Court for redressal of their grievance, apart from the one involved in the present writ petition.